Karnataka High Court
Arunaraja vs The State Of Karnataka on 13 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.752 OF 2018
Between:
Arunaraja
S/o. Appajaiah
Aged about 21 years
R/at Niddasale Post
Huliyurudurga Hobli
Kunigal Taluk
Tumkur District - 574 181. ...Appellant
(By Sri. Dharanesha, Advocate)
And:
The State of Karnataka
By Huliyurudurga Police
Kunigal Taluk, Tumkuru
Rept by State Public
Prosecutor, High Court Building
Bengaluru - 560 001. ...Respondent
(By Sri M. Divakar Maddur, HCGP)
This Criminal Appeal is filed under Section 374(2) of
CR.P.C., praying to set aside the judgment and order of
conviction dated 19.04.2018 passed by the II Additional
District and Sessions Judge, Tumkuru in S.C.No.19/2017
convicting the appellant/accused for the offence p/u/s
376(2)(j), 450 of IPC.
This Criminal Appeal coming on for Orders, this day,
the Court made the following:
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JUDGMENT
The present appeal has been preferred by the appellant/accused being aggrieved by the judgment and order of conviction passed by the II Additional District & Sessions Judge, Tumkuru in S.C.No.19/2017 dated 19.04.2018.
2. I have heard Sri Dharanesha, learned counsel for the appellant and also learned High Court Government Pleader for respondent-State.
3. Though this case is listed for hearing on Interlocutory Application, while on hearing the learned counsel for the parties, they conceded for final disposal and as such, the case is heard finally and disposed of by this judgment.
4. The case of the prosecution in brief is that the mother of the victim filed the complaint alleging that in her residence herself and victim daughter who is deaf -3- and dumb was residing. On 28.02.2016 at about 5.30 a.m., she went to her garden land for watering and at that time her daughter was staying alone in the house. Thereafter, she came back to the house at about 6.45 a.m., at that time she saw the accused who is resident of the same village coming out of her house hurriedly. Hence, she went inside the house and saw her daughter weeping and she consoled her and when she questioned her daughter by signing, she intimated with sign that she has been sexually assaulted, immediately she noticed the blood stain in her clothes and she brought the said fact to the notice of elders of the village and after confirmation of the fact that her daughter has been sexually assaulted, she filed a complaint. On the basis of the complaint, a case has been registered in crime No.23/2016 for the offence punishable under Section 376 of IPC. After investigation, the Investigating Officer has filed the charge sheet.
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5. The learned Magistrate commuted the case after following the procedure under Section 207 of Cr.P.C., and Sessions Court took cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for accused, the charge was framed, read over and explained to the accused, accused pleaded not guilty and claims to be tried, as such the trial was fixed.
6. In order to prove the case, the prosecution has examined 13 witnesses and got marked 18 documents as per Exhibits P.1 to P.18. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C., and the accused denied the incriminating material as against him. Thereafter, the accused got examined himself as DW.1. After hearing the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment and order of conviction came to be passed. Challenging the legality -5- and correctness of the said judgment, the appellant is before this Court.
7. During the course of the argument though the learned counsel for the appellant urged many grounds, the main ground urged by him is that after completion of the evidence, the case was posted for arguments on 16.04.2018 at that time the learned Public Prosecutor filed an application under Section 216 of Cr.P.C., requesting to alter the charge under Section 376(2)(j)of IPC and the learned counsel appearing on behalf of the accused submitted that he has no objection for the same. As such, the said application came to be allowed. It is his further submission that on the same day without giving any further opportunity for leading the evidence or to cross-examine the prosecution witnesses, the learned Sessions Judge heard the arguments on both sides and posted for judgment on 19.04.2018 and on that day, the impugned -6- judgment and order of conviction came to be passed that itself is in violation of Section 216 of Cr.P.C., It is his further submission that once the charge has been altered then under such circumstances, the Court has to direct for new trial or adjourn the trial for such period as may be necessary. Without following the procedure laid down, the Sessions Judge has straightaway passed the impugned judgment that itself is illegal and not sustainable under the law. On these grounds, he prays to allow the appeal and remand back the case to trial Court to do justice in accordance with law.
8. Per contra, learned High Court Government Pleader fairly submitted that the trial Court has not followed the provisions of Section 216 of Cr.P.C. and there is glaring illegality on the part of the trial Court and the said judgment is not sustainable in law. He further submitted that the matter requires to be remitted back to the Court below for fresh adjudication. -7-
9. I have carefully and cautiously gone through the submission made by the learned counsel for both the parties and perused the records.
10. As could be seen from the order sheet dated 16.04.2018, it indicates that after closing of evidence and when case was posted for arguments the learned Public Prosecutor has filed an application under Section 216 of Cr.P.C., requesting to alter the charge for the offence punishable under Section 376(2)(j) of IPC and the learned counsel for the accused submitted that he does not have any objection to alter the charge and on the same day, the charge was altered and read over and explained to the accused whereas he pleaded not guilty and claimed to be tried.
11. The learned Public Prosecutor submitted that he has further evidence so also the learned counsel appearing on behalf of the accused. But as could be seen from Section 216 of Cr.P.C., after alteration and -8- addition of charge, the Court is duty bound to proceed with the trial as if the altered and added charge had been originally framed. For the purpose of brevity, Section 216 of Cr.P.C., reads as under:
"1. Any Court may alter or add to any charge at any time before judgment is pronounced.
2. Every such alteration or addition shall be read and explained to the accused.
3.If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
4. If the alteration or addition is such that proceedings immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
5. If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not -9- be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
12. On close reading of Section 216(3) of Cr.P.C., it indicates that ample power has been given to the Court to alter or amend the charge but it does not amounts to the accused to face a charge for new offence or it should not prejudice in not giving full opportunity of meeting it and put forth the defence open to him on the altered charge. This proposition of law has been laid down by Apex Court in the case of Kantilal Chandulal Mehta vs. State of Maharashtra & Another reported in AIR 1970 SC 359. The main object is to ensure fair trial either for fresh evidence or by recalling the witness already examined. Even after alteration of charge accused was questioned, he pleaded not guilty and claimed to be tried. In that light, an opportunity ought to have been given to the accused.
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13. On going through the proceedings it is noticed that the trial Court without keeping in view the above said proposition of law has immediately proceeded to hear the arguments and posted for judgment. The said application has been filed for alteration of the charge because the victim girl is deaf and dumb by birth and she is not capable to give consent, as such, Section 376 does not attract and the charge ought to have been framed under Section 376(2)(j) of IPC. When section 216 of Cr.P.C., mandates that immediately after alteration and addition of the charge, it is considered to be a charge framed originally and the Court is duty bound to examine the witnesses by recalling all or material witness but in this behalf the Sessions Judge has not followed the said procedure, that itself is going to prejudice the rights of the accused and his right is affected in this behalf to have a fair trial. Keeping the above said facts and circumstances, I am of the considered opinion that there is some force in the
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arguments advanced by the learned counsel for the appellant and he has made out a case to set aside the impugned judgment passed by the trial Court and the matter requires to be remitted back to reconsider the facts and circumstances and if the accused intends to recall the witnesses to cross-examine, the said witnesses may be recalled and an opportunity has to be given to the accused to cross-examine the witnesses and even the prosecution intends to lead any further or fresh evidence, the same may be permitted in accordance with law.
14. It has been submitted during the course of the arguments by the learned counsel for the appellant that during the course of the trial, accused was on bail and after conviction, he has been taken to custody. In that light, any such application is filed to release him on bail the trial Court can consider the said aspect in accordance with law. It is hereby directed to dispose the
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case after following the provisions of Section 216 of r.P.C., as observed above.
With the above observations, the appeal is allowed and the judgment of conviction and order of sentence passed by the II Additional District & Sessions Judge, Tumakuru is hereby set aside and the matter is remitted back to the trial Court to dispose the case in accordance with law by giving opportunity to both prosecution as well as accused.
Registry is directed to send back the Lower Court Records forthwith. Accused and prosecution is directed to appear before the trial Court without further notice on 09.10.2019.
Pending I.A.No.1/2019 does not survive for consideration.
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JUDGE nms